Congress hears concerns about student- athletes’ move to unionization

Members of Congress had many questions on May 8 about the recent ruling, which allowed college football players at Northwestern University to form a union.

The hearing held by the House of Representatives’ Committee on Education and the Workforce comes after Peter Sung Ohr, a regional director of the National Labor Relations Board (NLRB), ruled football players at Northwestern University are “employees” of the school for the purpose of collective bargaining. The full NLRB will review the decision. Players' ballots on whether to form a union have been impounded awaiting a decision from the full NLRB.

U.S. Rep. John Kline, (R-Minn), who is the committee’s chairman, stated his opposition to the unionization of college athletes, and predicted that the NLRB, under the Obama administration, “will rubber stamp the regional director’s decision, setting a dangerous precedent for colleges and universities nationwide.”

“The challenges facing student athletes should be addressed in a way that protects the athletic and academic integrity of higher education,” Kline added in a written statement. “The recent NLRB decision takes a fundamentally different approach that could make it harder for some students to access a quality education. I strongly urge the Obama board to change course and encourage key stakeholders to get to work.”

On the other hand, Kline wants to see student athletes’ concerns addressed by colleges.

“Their dreams can be turned upside down by a sports-related injury,” he said. “When that happens, institutions must step up and provide the health care and academic support the student needs. Most institutions are doing just that and standing by their athletes for the long-haul, but some are not. No student athlete injured while representing their school on the field should be left behind because of the misplaced priorities of a college or university.”

Looking back to when President Franklin D. Roosevelt signed the National Labor Relations Act, Kline said, “It’s hard to imagine President Roosevelt thought the law would one day apply to the relationship between student athletes and academic institutions.”

“We share the concerns of players that progress is too slow, but forming a union is not the answer; treating student athletes as something they are not is not the answer,” Kline said.

On the other hand, InsideCounselreported that Ohr said in his ruling that the amount of time players devote to athletics should make them eligible for benefits.

“Not only is this more hours than many undisputed full-time employees work at their jobs, it is also many more hours than the players spend on their studies,” Ohr said.

Among those testifying before the committee was Bernard Muir, Stanford’s director of athletics. He pointed out that 97 percent of its student athletes earn a degree, and the university is “open to making improvements” for student athletes.

“We firmly believe that the most important thing our student-athletes walk out the door with when they leave Stanford is not a varsity letter or a national championship ring – it is a Stanford degree,” he said.

In addition, Patrick C. Eilers, a managing director of Madison Dearborn Partners, testified that “student athletes should be students first and foremost” – and moving to unionization will make college sports more of a business. A former football player at Notre Dame, he agreed that some improvements can be implemented.

And Baylor President Kenneth Starr said that 82 percent of his school’s athletes recently graduated from the college.

Looking at the NLRB decision on Northwestern, he added that, “It seems … to be the wrong way to go.” He pointed out that the ruling did not include walk-on players.

“The decision by the … NLRB Region 13 Director to characterize student-athletes as ‘employees’ presents a fundamental paradigm shift with respect to the relationship between universities and their student-athletes. While limited by its terms to private institutions, the decision is bound to affect all Division I athletic programs – public and private alike. A variety of questions and unintended consequences arise out of this ruling with far-reaching legal, regulatory, and financial implications that may significantly affect the future of intercollegiate athletics,” he added in a statement. He cited possible impact involving Title IX and the Fair Labor Standards Act.

The committee members had many questions for the witnesses – and some members made comments, too.

“The nostalgic days where student-athletes really were ‘students’ first…are pretty much over for high-level athletic programs,” Rep. George Miller (D-Calif.), the committee’s ranking Democratic member, said.

“I believe the National Labor Relations Act is not an appropriate vehicle to address student-athletes’ concerns or disputes with their colleges and universities, athletic conferences, or the NCAA,” Bradford L. Livingston, a lawyer with Seyfarth Shaw and who teaches labor law at John Marshall Law School in Chicago, said in prepared statement submitted to the committee. “The legal and practical results of deeming these student-athletes to be employees within the meaning of the Act would be profound and unworkable.”

He points out that if college student-athletes are considered employees under the NLRA their “rights supersede and render illegal many of the common sense policies that colleges impose on their students and student-athletes.”

For instance, a student-athlete-employees’ union would be able to negotiate over “academic standards, ranging from minimum grade point averages, to class attendance requirements, the number and form of examinations or papers in any class, grievance procedures to challenge a poor grade from a professor, and even potentially graduation requirements,” he said.